Our goal is to create a quality of empathic connection that allows everyone’s needs to be met.~ Marshall B. Rosenberg

A few years ago, a couple acquaintances of mine, lost their 14 years old daughter due to a medical error at the hospital near where they lived, in Wales. Both mother and father were devastated but the father in particular could not deal with the grief. He sued the hospital and the medical staff but no matter what he did judicially, his rage could not be appeased. No amount of compensation could, would fill the empty place in their home, nothing would bring his precious daughter back and heal the deep aching void that was left in this life. He fell into a deep depression. So much so that he had to go on strong medication and it was as if he was in a deep dark vortex that would bring him to ever lower and darker places. Their marriage, already strained by the illness and passing of the child, suffered terribly and they eventually separated, to cope with their loss, on their own.

I was reminded of them when I attended the Medical Mediation Conference at the Mediation Awareness Week last year and I realised how different things could have been for them if mediation had been made available to them.

In the UK, while mediation has had increased popularity in the work place and in the community, it still taking baby steps in the medical world where the normal procedure in cases of conflict is to take the legal route and sue a hospital, or the doctor in an attempt to “rectify a wrong”.   Regardless of which side “wins”, it seems that both sides actually lose. The prospect of a legal procedure has some very real negative repercussions on the medical staff. For the most part, people in the medical profession are dedicated and diligent, if at times overworked. The fact they can be sued for a possible mistake brings an ethos of defensiveness. Being proven at fault could seriously affect the reputation, career and possibly the livelihood of the individuals involved. This is further re-enforced by the fact that the lawyers, on either side, who will try their best to plead for their client, and against the other party.

If the court process is difficult for the medical staff, it snowballs into consequences even more dramatic in the lives of the families affected. As they try to adjust and deal with whatever happened to their loved one, they find themselves with few answers as the medical staff might stand back and keep a protective veil over themselves. It leads to the family “not feeling heard” and getting angry as to “why did this happen”. It is not always the case that the medical profession is at fault in the family’s suffering. Regardless of the “why”, what they need at this stage is real empathic communication, having their questions answered, perhaps a sincere “I am sorry”. A feeling from the other party that they “feel” for the pain of the family. A lack of empathic communication at such a delicate time can backfire in filling the grieving family with anger which can turn into accusations, sending all the parties involved into a “war-like” state where both parties feel that they have to “defend” themselves. And indeed much is at stake.

Without an alternative way of dealing with it, the situation ends up in court, and it is, for both parties, the start of a long and bitter dispute. Court proceedings put an immense financial burden on the families. It also impacts on the mental well being of all involved, with dangerously high levels of stress.

In my opinion, the most damaging factor is that the court process itself, does not provide the party trying to make sense of what happened to their family member, with an avenue for proper communication. The lawyers speak on behalf of their client. There is no room for the family to share about their loss, their pain, the devastation the situation has left them in. Without this process, the grieving party will find it difficult to receive the validation that will lead to healing.

This is where mediation can and does provide the means for the beginning of healing, the beginning of the first step forward. The parties are given the space where they can express themselves, be listened to fully, with compassion and empathy, and feel the validation that ultimately will bring them soothing and acceptance. It also provides the medical services with the ability to learn fully from the situation. Medical staff however dedicated and professional are also human, mistakes can happen. And even when there wasn’t a mistake, the families  will need to feel heard, empathised with so they can grieve and ultimately accept.

A mediator will provide a space for both parties to express themselves, first in private, then, to each other. A mediator is impartial, he has no stakes in either of the parties, he is there to enable and facilitate the communication, the difficult conversations that need to take place between the parties so the matter can move forward.

This makes mediation a far superior tool than using the legal route.



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This article was written by Toni Jenkins. She is the director of EARLY DISPUTE RESOLUTION HUB and a co-ordinator of MPG events as well as an associate member of IGRC.